County election officials throughout Florida are recounting votes as the campaigns take the battle to the courtroom.
Recounts in the razor-thin races for Florida’s governor, senator and agriculture commissioner were triggered because the margins in all three contests are under .5%.
The path to victory for Sen. Bill Nelson
As we have made clear many times, the possibility of incumbent Sen. Bill Nelson flipping the results into his favor are slim, but he does have a chance against challenger Gov. Rick Scott. As we move through the recount process that path to victory is becoming clearer. If the existing pool of votes remains the existing pool of votes, history shows us that he is unlikely to win. That means they need more votes. So where do they come from? The first is from the hope that the pool of “undervotes” in Broward County is a hidden treasure trove for Nelson. There is a statistical anomaly in Broward where there are roughly 25,000 fewer votes cast in the Senate race than in any other race. The Nelson campaign hopes that some sort of machine error or ballot design left their votes out of count. If that is the case, that could mean a new batch of votes. Then come the lawsuits. Nelson’s lawyers are pinning their hopes on four specific lawsuits. Every single one of them is directly targeted at finding more votes. The more votes that can be counted, the greater the possibility they can close the gap. On a conference call Tuesday night, Marc Elias, Nelson’s lead lawyer, said there is the potential of “many thousands” of new votes that could be counted if his lawsuits are successful.
About those lawsuits
Wednesday is a crucial day. A federal judge will hear arguments in the Nelson claim that Florida’s signature match law should be tossed. The law requires people who vote by mail to sign their ballot. That signature must closely resemble the signature first used when they registered to vote. If it doesn’t, the vote doesn’t count. Nelson’s lawyers believe this standard is unfair and disenfranchises a whole host of voters. We may not know immediately how the judge will rule in this case. The hearing could be lengthy – given the witness list it could go two to three hours. We don’t know when the judge will issue his decision, but it is possible that he could hand it down right from the bench. The ruling could provide a big clue as to where these legal battles are headed. A win or loss for either side could foreshadow the direction of all these cases, and as we said before, Nelson needs to win just about everything to have a realistic shot of turning the tide. The signature lawsuit is just one of many lawsuits dealing with similar interpretations or challenges to Florida voter law. On Tuesday, the judge warned that not all the suits will have hearings, and it is quite possible that decisions in any of these cases could come down at any time.
Mark Walker – senator maker?
Speaking of those lawsuits, the man at the center of almost all of them is Judge Mark Walker, an interesting and independent character. By a quirk in the system, Walker is the only judge in a position to hear cases like these. The original judge had to recuse himself because he was hearing another case involving the Scott administration. A second judge could not be assigned to any of the cases because his son is a county election supervisor. As a result, Walker is presiding over seven cases (and counting?) involving the recount. Walker has a history with Scott. He is an Obama appointee who had the support of Sen. Marco Rubio. He famously forced Florida to extend voter registration deadlines during the heat of the 2016 election in the wake of Hurricane Matthew after Scott declined to do so. Scott’s record in front of Walker is pretty poor, but Republicans are hopeful because they believe Walker’s track record on election law related matters plays in their favor. It was his ruling on a previous lawsuit related to the signature match standard that led to the existing law. One thing is for sure: his rulings could play a big role in who the next senator from Florida ends up being.
Will the recount be extended?
The short answer is maybe, but if it is, it won’t be for a very long time. The Democrats have filed a lawsuit asking for the deadline to be extended. Elias said on his Tuesday night conference call that there is no “real rush” to get the count done because the next senator won’t be seated until January. (Yes, that made the hearts of the newly-made, unofficial CNN Tallahassee Bureau stop.) But there is probably no real need for it to go on indefinitely. The vast majority of counties will have their recount done with time to spare. Those who need extra time, may only need a day or two. After Elias scared us into thinking we needed to go Christmas tree shopping in the Florida panhandle, he said the extension needs are “likely days, not weeks.” Phew. Regardless, it won’t matter under any circumstance unless the Democrats win their court case.
Will the real senator from Florida please stand up?
We saw Nelson in the flesh for the first time since before the election on Tuesday. He appeared with Democratic leader Chuck Schumer and recited the same talking points his campaign has been pushing since it became clear the race was going to a recount. He took no questions. In fact, he has yet to take a question of any kind from anyone since before Election Day. On Tuesday, though, we were reminded that he is still the senator, and those optics are important. Wednesday, it will be Scott’s turn. The governor will descend on Capitol Hill in the role of senator-elect. He will appear with Majority Leader Mitch McConnell and the other new freshmen senators (including Sen.-elect Mitt Romney), and he will vote in leadership elections. It is not as if Scott has been incredibly accessible during this process either. He, too, held a new conference where he took no questions. However, he has conducted some interviews, albeit with mostly friendly outlets, and has stuck to talking points. For one Wednesday in November, it might be almost like Florida has three senators, with Nelson, “Senator-elect” Scott and Rubio all on Capitol Hill.
The future of Brenda Snipes
It now seems likely that Broward County elections supervisor Brenda Snipes will survive the recount, but beyond that is an open question. (READ: Dan Merica’s deep dive on Snipes.) Republicans privately recognize that if Scott were to remove her now, the political optics would be untenable. There is also an argument to be made that having her there as a foil works well for their PR game. Snipes made a very general passing reference to the idea that it may be “time to move on” from her current position. She didn’t, however, give a timeline, and she didn’t say how she would end her career. Keep this in mind: she is up for re-election in 2020. If she decides to go, does she step down immediately or does she choose not to run for re-election? If it is the latter – and this is important – she still would oversee the 2020 election. Republicans, from former Gov. Jeb Bush to Rep. Brian Mast and others, want her gone as soon as possible. Unless the likely eventual Gov. Ron DeSantis makes a bold move that prior Republican governors did not want to make, that decision will be up to Brenda Snipes. This story is far from over.
CNN’s Aaron Cooper, Dan Merica, Annie Grayer, Greg Krieg, DJ Judd and Harlan Schmidt contributed to this report.